How successful is Article 62 of the Vienna Convention of the Law of Treaties 1969 in dealing with the termination of treaties on the grounds of fundamental change of circumstances?

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The doctrine of fundamental change of circumstances, (rebus sic stantibus) is a principle of customary international law allowing a part to an agreement to withdraw or terminate it where there has been a fundamental change in circumstances. The main justification for this principle is that treaties often remain in force for many years, during which time fundamental changes may occur in the political or international environment which may require a departure from the provisions set out in the treaty. However, this principle has also been criticized for disrupting the binding force of obligations taken by states, particularly when bearing in mind that there is no compulsory jurisdiction forcing states who terminate a treaty on this ground, to have the legitimacy of their decision scrutinised before an international tribunal.

Nevertheless, this principle has been codified in Article 62 of the VCLT, although its scope has been severely restricted. Article 62 (1) is drafted it negative terms, stating that a fundamental change of circumstances which has occurred since the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

This is further restricted by Article 62 (2) which states that fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if the treaty establishes a boundary or if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

If these conditions are met, Article 62 (3) allows a state to suspend the operation of the treaty if it does not wish to terminate it or withdraw from it.

Therefore, in order for Article 62 to apply, five conditions must be met. First, the change must be of circumstances existing at the time the treaty was made. Second, the change of circumstances must be "fundamental". Third, the change must not have been foreseen by the parties. Fourth, the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty in the first place. Fifth, the effect of the change must be radically to transform the "extent" of obligations still to be performed under the treaty.

The possibility of terminating a treaty on grounds of fundamental change of circumstances was recognised in the Fisheries Jurisdiction case, but was not held to be applicable on the particular facts of that case. In this case, Iceland and the UK entered into an agreement to limit their fisheries jurisdiction to within their 12 mile continental shelf limit. However, as the law of the sea developed, greater fishing zones became permissible, and Iceland argued that these developments where a fundamental change of circumstances allowing them to withdraw from the treaty. The ICJ held that a change in the law is not sufficient to constitute a fundamental change of circumstance. A change in international law could however terminate the treaty on grounds of supervening impossibility of performance if the change made the carrying out of the treaty illegal. It was stated that changes in circumstances will only be regarded as fundamental if they "imperil the existence or vital development of one of the parties." Moreover, it was added that "the change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that initially undertaken". As these requirements had not been met, Iceland could not withdraw from the agreement.

Similarly, the scope and...
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